More ju­ve­niles may have been il­le­gally taped, emails sug­gest

San Francisco Chronicle - Late Edition (Sunday) - - BAY AREA - By Me­gan Cas­sidy

An Alameda County Sher­iff ’s Of­fice sergeant charged with il­le­gally record­ing ju­ve­nile de­tainees’ dis­cus­sions with their at­tor­ney may have also recorded two other priv­i­leged con­ver­sa­tions, ac­cord­ing to in­ter­nal emails ob­tained by The Chron­i­cle.

Last fall, Alameda County prose­cu­tors charged Sgt. James Rus­sell with four felony counts of eaves­drop­ping af­ter The Chron­i­cle pub­lished body cam­era footage of him say­ing he had recorded youths with their at­tor­ney. The al­le­ga­tions stemmed from a sin­gle at­tempted rob­bery case in­volv­ing four sus­pects, but prose­cu­tors said they would re­view “dozens” of the agency’s ju­ve­nile cases as a pre­cau­tion.

To date, prose­cu­tors have not an­nounced any

other al­le­ga­tions of fur­ther wrong­do­ing by Rus­sell.

How­ever, cor­re­spon­dence ob­tained by The Chron­i­cle through a pub­lic records re­quest ap­pears to show Rus­sell ad­mit­ting to record­ing priv­i­leged con­ver­sa­tions on two other oc­ca­sions.

The ju­ve­nile “was placed into the in­ter­view room and the Pub­lic De­fender was con­tacted,” Rus­sell writes of a po­ten­tial ve­hic­u­lar theft sus­pect. “The DVR was record­ing.”

Teresa Drenick, a spokes­woman for the Alameda County district at­tor­ney’s of­fice, said prose­cu­tors are aware of the other two in­ci­dents Rus­sell men­tions in the Aug. 1 email, and an “in­ves­ti­ga­tion into the mat­ters has not yet con­cluded.”

Pub­lic De­fender Bren­don Woods told The Chron­i­cle that his of­fice re­cently re­ceived the same emails be­tween Rus­sell and su­pe­ri­ors through a pub­lic records re­quest.

“I read th­ese as two sep­a­rate in­ci­dents of record­ings here that could be po­ten­tially charged, and they have not yet,” Woods said. “I think it just brings into ques­tion: What else ex­ists out there, and what else could be charged against th­ese of­fi­cers?

“We were hop­ing it was one iso­lated in­ci­dent, and what we’ve dis­cov­ered so far is it is more than that.”

Woods said his of­fice is re­view­ing the cases in ques­tion and may take the mat­ter back to a judge. “But I think more im­por­tantly than that, if (the Sher­iff ’s Of­fice) vi­o­lated any of our clients’ rights, we’re go­ing to be re­quest­ing the D.A. to dis­miss those cases,” he said.

Sgt. Ray Kelly, a sher­iff ’s spokesman, re­ferred all ques­tions to the district at­tor­ney’s of­fice. “The D.A. came in early and took over the in­ves­ti­ga­tion,” Kelly said, not­ing that the Sher­iff ’s Of­fice has turned over all rel­e­vant in­for­ma­tion.

On July 31, Woods emailed Sher­iff Greg Ah­ern about an il­le­gal record­ing be­tween one of his at­tor­neys and a client. De­fense at­tor­neys had re­ceived the footage in dis­cov­ery.

Ah­ern re­sponded to Woods, “I am told that if this did oc­cur that it was a one-time oc­cur­rence.” The same email was copied to Sher­iff ’s Of­fice com­mand staff mem­bers and in­structed them to pro­vide train­ing to deputies and in­ves­ti­ga­tors “to en­sure that all pro­tected/ priv­i­lege con­ver­sa­tions are pro­tected.”

The mes­sages touched off a flurry of in­ter­nal emails about the train­ing, with one from Lt. Ti­mothy Schel­len­berg telling Rus­sell “it has be­come a big is­sue for the sher­iff.”

A day later, Rus­sell apol­o­gized in an email to Schel­len­berg, who over­sees the sher­iff ’s in­ves­ti­ga­tions unit, “for the headache and added work this has caused you.” Hours later, Rus­sell sent an­other email de­tail­ing other cases that could be scru­ti­nized.

The first case Rus­sell laid out in­volved a grand theft in­ves­ti­ga­tion of three ju­ve­niles, ac­cord­ing to the par­tially redacted record. One of the sus­pects was placed in an in­ter­view room, and “his pres­ence in the room was recorded,” Rus­sell wrote.

Rus­sell said he called Deputy Pub­lic De­fender Gra­ciela Estrada on his cell phone, al­lowed the ju­ve­nile to speak to her, and left the room.

The sec­ond in­ci­dent in­volved a ju­ve­nile as­sault vic­tim who was also a sus­pect in an auto theft. Af­ter not­ing the DVR was record­ing, Rus­sell said he stepped out of the room as Deputy Pub­lic De­fender Brian Amaya met with the ju­ve­nile.

In the third case, Rus­sell wrote, “This is the case you are well aware of.”

At no point did Rus­sell note who specif­i­cally started the record­ings or whether any­one stopped them as the priv­i­leged con­ver­sa­tions took place.

Af­ter reve­la­tions of the first record­ing that led to charges be­ing filed against Rus­sell, Woods asked a judge to is­sue a stand­ing or­der that would pro­hibit the Sher­iff ’s Of­fice from un­law­fully record­ing priv­i­leged com­mu­ni­ca­tions. Alameda County District At­tor­ney Nancy O’Mal­ley re­sisted the mo­tion, say­ing it was un­nec­es­sary.

“It as­sumes that all of­fi­cers will break the law un­less there is a law­ful or­der not to break the law,” O’Mal­ley ar­gued.

Judge C. Don Clay ul­ti­mately de­nied the re­quest, but he said he will re­con­sider the is­sue if the prob­lem is sys­temic.

Rus­sell, who is on paid administrative leave, faces up to five years in pri­son if con­victed on all cur­rent charges. His next court ap­pear­ance is sched­uled for Feb. 19.

His at­tor­ney did not re­spond to re­quests for com­ment.

Me­gan Cas­sidy is a San Fran­cisco Chron­i­cle staff writer. Email: me­gan. cas­[email protected]­i­cle.com Twit­ter: @megan­r­cas­sidy

Sher­iff ’s Sgt. James Rus­sell faces up to five years in pri­son.

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